1. ' This is a petition filed under Article 199 of Constitution of Islamic Republic of Pakistan. In this petition the petitioner has challenged the judgment, dated 6-2-1999 and decree, dated 9-2-1999 passed by the 4th Extra Joint and Family Judge Hyderabad in Family Suit No, 13 of 1997. In this Family Suit the trial Judge has decreed the plaintiff/respondent No,1 suit for dissolution of marriage on the ground of Khulah.
2. ' Briefly the facts giving rise to this petition are that respondent No,1/Plaintiff was married with the petitioner on 20-7-1984 against a prompt dower of Rs, 151 which claimed to be unpaid. It is the case of the plaintiff that at the time of marriage her parents had given dowery articles worth Rs,2,50,000 including golden ornaments and other household articles which were lying in the house of the petitioner. Out of the said wedlock two sons were born. It is stated by the Plaintiff that she used to reside with her in-laws but the petitioner never maintained her properly and regularly. However, on occasions the petitioner used to send the plaintiff some money through draft as the petitioner was serving in U.A.E. Since 1987 and used to visit occasionally. The plaintiff claims that at the time of birth of his elder son he sent some money to meet maternity expenses. The petitioner had also remitted some money on occasion of Eid. It is maintained by the plaintiff that she is a doctor of Grade-18 and out of her income maintaining herself and her two children. It is further the case of the plaintiff that due to the treatment and behaviour of the petitioner being cruel and harsh against her, she developed aversion and hatred for the petitioner. The plaintiff is even ready to forgo her dower amount and maintenance. On the above facts the plaintiff filed suit for dissolution of her marriage by way of Khula.
3. ' The petitioner through his father and attorney filed written statement wherein he generally denied the allegations leveled against him. It is contended by the petitioner that as per schedule he sent money to the plaintiff on various occasions.
4. ' It is further maintained by the petitioner that the plaintiff left his house alongwith children for celebrating Eid-ulFitar. He maintained that the plaintiff and her children were fully lookedafter by his father during his absence, and that he has been sending huge amount for their maintenance. It is claimed by the petitioner that the plaintiff had been operating various Bank accounts as joint account as well as personal account, and she had been withdrawing these amounts and utilizing the same for her maintenance and maintenance of her children. It is further contended by the petitioner that he has been taking the plaintiff to U.A.E. And again where she had purchased lot of items for her own choice. He felt that she had no grounds for, seeking a divorce.
5. ' Out of the above pleadings the trial Court settled the following issues:
(i) Whether the plaintiff was treated with cruelty by the defendant?
(ii) Whether the plaintiff was properly maintained by the defendant?
(iii) Whether the plaintiff is entitled for grant of Khula?
(iv) What should the decree be?
6. ' In support of her case the plaintiff examained herself and one Iftikhar Hussain and closed her side.
7. While the Petitioner examined himself and produced vouchers, bank receipts and also examined one Abdul Aleem who is bank officer of M.C.B., Abdul Razzak, Bank Officer from H.B.L. Hadayatllah, Asst. Manager of U.B.L., Muhammad Bashir, his father and Muneer Ahmed an Officer of H.B.L. And closed his side. On the assessm ent of the evidence the learned trial Court decreed the suit of the plaintiff as stated above.
8. ' I have heard the learned counsel for the petitioner as well as for respondent No,1 and have also gone through the entire record available before me.
9. ' It is contended by the learned counsel for the petitioner that the trial Court has misread the evidence of the parties on various points. He has further contended that while granting Khula the trial Court has ignored the aspect of Islamic Law according to which Khula is not absolute right of wife but a controlled one. He has maintained that the plaintiff has failed to prove aversion to the petitioner and Khula is not to be allowed frequently on mere asking of the wife unless Court is satisfied.
10. ' The learned counsel for the respondent No,1 has supported the impugned judgment and decree passed by the trial Court.
11. ' It is pertinent to note that the plaintiff examined herself on oath and she had given justification for grant of Khula in her statement. The learned counsel for the petitioner has not been able to cross- examine her on any vital point and the evidence of the plaintiff goes unrebutted. Since the plaintiff has developed aversion and hatred for the petitioner' and she is not ready to live with the petitioner, it is not possible for the Court to compel her to live with the petitioner. Even otherwise, in Islamic state women have rights to obtain Khula in case she is maltreated by the husband. The allegations levelled by the plaintiff against the petitioner were not controverted by the petitioner at all. In the case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169, the following proposition has been laid down: "As regards the third submission of the learned counsel for the petitioner that dissolution of marriage by Khula cannot stand whilst an inquiry on facts with regard to the terms on which it is to be granted is yet to take place, it appears plausible but is not quite sound. It was held in the case of Moonshee Buzul-ul-Raheem v. Luteefutoon Nisa (3 Moore's Ind. Appl. 379) that non-payment of stipulated consideration for Khula does not invalidate the dissolution of marriage by Khula. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God then the dissolution of marriage by Khula must take place. The inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself."
12. ' He has basically been aggrieved with the decision of the trial Court and has filed this Constitutional petition against it. His objections of the decree have been highlighted in paragraphs 3, 5 and 7 of the grounds to petition, which seem to show that woman cannot claim Khula as a right and it should not be given easily given. He has further contended that they should not be allowed a blank authority for seeking divorce. According to the counsel the trial Court has not considered all the evidence that was brought on record and has not appreciated that the petitioner has spent a huge amount on his wife during their married life.
13. ' The expenses on the amount spent are to perhaps convey the impression that the neglect of the wife was not there. Perhaps the petitioner is under the impression that amount spent on the spouse would be enough justification for him to claim that the plea of Khula by his wife was unwarranted.
14. ' I have gone through the judgment pronounced by the 4th Extra Joint Civil Judge and Family Judge Hyderabad and pleased to observe that it is a very detailed judgment. He has gone through all the aspect (factual and legal) whereafter he has given the decision.
15. ' It would be worthwhile to look at in detail the concept of Khula under the Muslim Family Law Ordinance, 1961 and also the Dissolution of Muslim Marriages Act, 1939.
16. ' Under the Mohammadan law there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce.
(1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mohammaden Law 1 viz., talak ahsan, which consists of a single pronouncement of divorce, during tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or talak ahsan, which consists of three pronouncements made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly talak-ul-bidaat or talak-e-badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentence signifying a clear intention to divorce the wife, for instance the husband saying 1 divorce thee irrevocably' or I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is, however, not recognized by the Shiah law.
17. ' A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorce should come to know of the fact that she has been divorced by her husband.
(2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquia either or part the dower This mode of divorce is called khula o mubarat. This form of divorce initiated by the wife and comes into existence if the husband give consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these modes is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage. Wherein it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to by the husband. In such a case the wife can repudiated herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband. This mode of divorce is called 'tafweez').
(3) By obtaining a decree from a civil Court for dissolution of marriage under section 2 of the Act of 1939, which also amounts to a divorce (under the law) obtained by the wife.
18. ' In this case the respondent No,1 has sought annulment of her marriage with the petitioner by exercising her right under the law. Since she has claimed Khula, it would be worthwhile to examine the basic meaning of Khula and how it came about.
19. ' Kholla. In its primitive sense, means to draw off or dig up. In law it signifies an agreement entered into for the purpose of dissolving a connubial connexion, in lieu of compensation paid by the wife to her husband out of her property. This is the definition of it in the Jama Ramooz.
20. ' Whenever an enmity takes place between husband and wife and they both apprehend that the ends of marriage are not likely to be answered by a continuance of their union, the woman need not scruple to release herself from the power of her husband, by offering such a compensation as may induce him to liberate her, because the word of God says, "No crime is imputed to the wife or her husband respecting the matter in lieu of which she hath released herself"; that is to say, there is no crime in the husband's accepting such compensation, nor in the wife's giving it.
21. ' Which occasions a single irreversible divorce And where the compensation is thus offered and accepted, a single divorce irreversible takes place, in virtue of Khoola and the woman is answerable for the amount of it, because the Prophet (p.b.u.h.) has said that Khoola effects an irreversible divorce; and also, because the word Khoola bears the sense of divorce whence it is that it is classed with the 'implied expressions of it, and from an implied divorce a divorce irreversible takes place:--- but intention is not essential to Khoola, because by the mention of a compensation, the act is made independent of it;--- and also, because it is not to be imagined that the woman, would relinquish any part of her property but with a view to her own safety and ease, which is not to be obtained but by a total separation. What is now advance proceeds upon a suppose on of the aversion being on the part of the wife, and not on that of the husband; but if it be on the part of the husband, it would be abominable in him to take anything from her because the sacred tex days: "If ye be desirous of changing (that is, repudiating one wife and marrying another), Take not from her any thing;"-- and also because a man, by divorcing his wife from such a desire of change, involves her in distress; and it behoves him not to increase that distress by taking her property. If, moreover the aversion be on the husband to take from her more than what he had given or settled upon her namely, her dower. (According to the Jama Sagheer, if the husband take from her more than the dower, it is strictly legal, as the text of the Koran already quoted is expressed generally, but the former opinion is founded on a tradition of the Prophet, (p.b.u.h.) to whom a woman having mentioned her hatred of her husband, he advised her to give up her dower, as compensation, to induce the husband to divorce her, to which she replied, "will give that and more but the Prophet (p.b.u.h.) answered" not more" and here the aversion was on the part of the woman). But yet if the husband should take more than the dower, it is approved in point of law and so also, if he were to take any compensation, where the aversion is on his part, because the sacred text, goes to establish two points, one, the lawfulness of Khoola in a judicial view, and the other, its admissibility between the parties and God Almighty, now from the tradition which has been recited, appears that where the aversion is on the part of the wife, a Khoola for more than the dower is disapproved and, on the other hand, the text before quoted shows that if the aversion be on the part of the husband, he should not take anything, and consequently not more than the dower a fortiori, wherefore the ground of admissibility is abandoned, on account of the contradiction between the tradition and the text, and practice is established upon the other remaining ground, namely the lawfulness of Khoola in a judicial view.
22. ' The compensation for Khoola may consist of anything which is lawful in dower. Whatever is capable of being accepted as a dower, is also capable of being accepted as a compensation for Khoola since whatever is capable of being a proper return for that which is appreciable (namely) the woman's person at the time of its coming into propriety, must, in a superior degree, be capable of being a compensation for a thing not appreciable (namely, the woman's person at the time of the destruction of propriety).
23. ' If a woman say to her husband, "Grant me Khoola for what is in my hand, and he agree, and it should afterwards appear that she had nothing in her hands divorce, takes place, but nothing remains incumbent upon the woman, as she has not deceived her husband, by any specific mention of property, but if she were to say "grant me Khoola for the property in my hand, and he agree accordingly, and it should appear that she had nothing in her hand, she must in this case return to him her dower, because she has deceived him by a specification of property which did not exist and hence he does not appear to consent to a relinquishment of the connubial propriety without a return, and the woman cannot be legally bound to give the thing specified, or its value, as its kind or species is unknown, neither can she he laid under any legal obligation to render the estimated value of her person that is, her proper dower, because in the circumstance of the destruction of the connubial propriety, that is not appreciable; it is therefore fixed that I here remain incumbent upon her whatever the husband may have given in lieu of his attainment of the propriety, in order that thus the may be shielded from injury. If, moveover a woman say to her husband, "grant me Khoola for the Dirms in my hand, and he agree and it afterwards appear that she had nothing in her hand, he has a claim upon her for three Dirms, the proofs are here taken from the Arabic.
24. ' If a man say to his wife, "you are divorced upon payment of one thousand Dirms, and she agree, divorce takes place upon her, and the husband has .a claim upon her for the thousand Dirms, in the same manner as where a man says, "you are divorced for a thousand Dirms, and the wife consents, in which case divorce takes place, and one thousand Dirms are incumbent upon her but it is to be observed that in both cases the woman's assent is a condition, because the words of the husband, "you are divorced for one thousand Dirms, mean, "you are under divorce in return for one thousand Dirms, due from you to me," and his words, "you are divorced upon payment of one thousand Dirms, mean "you are under divorce on condition that one thousand Dirms be due from you to me," and the return cannot be made incumbent upon her without her assent, moreover a circumstance suspended upon a condition cannot take place until the condition he previously fulfilled, wherefore the effect in this case depends upon her agreeing to what is proposed. And here the divorce is irreversible, for the reason already stated.
25. ' If a man say to his wife," you are divorced, and there is against you a thousand Dirms, and she consent, or, if a man say, to his slave, "you arc free and there is against you a thousand Dirms, "and the slave assent, the slave is free, and divorce takes place upon the wife, but nothing remains incumbent upon either, according to Haneefa the rule is also the same if they were not to assent.
26. The two disciples say that the sum specified is incumbent upon them where they assent, but that, if they do not assent, neither divorce nor emancipation take place, for they argue that the latter part of the husband's address is such as is used in bargains of exchange; and a contract of Khoola, or of Kitabat, being a contract of exchange, is therefore to be considered as such as in hire, for instance, where if a man say to another, "carry, this burthen, and there is a Dirms, for you, it is the same as if he were to say, carry this burthen for a Drim. To this Haneefa replies that the latter part of the sentence has a separate and detached sense, and therefore is not be connected with the preceding part, unless there be something to show that it is so but here nothing exists to evince such connexion, because divorce and manumission are frequently produced without any substantial return contrary to cases of sale, or of hire, as neither of these arc to be conceived without a substantial compensation.
27. ' A mutual discharge leaves each party without any claim upon the other. A Mobarat, or mutual discharge Signified by a man saying this wife, "1 am discharged from the marriage between you and me," and her consenting to it), is the same as Khoola, that is to say, in consequence of the declaration of both, every claim which each had upon the other drops, so far as those claims are connected with their marriage. This is the doctrine of Haneefa. Muhammad says that nothing is done away by either expect what is particularly mentioned by both the husband and the wife.
28. Aboo Yousaf unites with Muhammad as to the Khoola, but with Haneefa as to the mutual discharge. The argument of Muhammad is that mutual discharge and Khoola are contracts of exchange in which the circumstances specifically stipulated are also regarded, and not those which are not stipulated. The argument of Aboo Yousaf is that the word Mobarat, from its grammatical form bears a reciprocal sense, and therefore requires that the discharge be equally established on both sides; and this is general; yet the discharge is in this case restricted to those rights connected with marriage, as the design proves it to be so; but Khoola only requires that the woman be freed from the restraint of her husband; and as that is obtained by the dissolution of the marriage, it does not require that all its effects be terminated. The argument of Haneefa is that Khoola bears the sense of separation, and that is general, the same as a mutual discharge, and consequently marriage is thereby terminated, together with all its rights and effects, the same as by a mutual discharge.
29. ' Wife is not entitled to claim right of Khula as a matter of right without satisfying Court that relations between parties were so strained that they could not live within limits prescribed by God.
30. ' The right of Khula' is not unconditional right, but this can be granted by a Court upon satisfying itself that there is such discard, hatred, intense dislike and incurable aversion on the part of the wife that it is impossible for the spouses to live together and perform their material obligations within the limits prescribed by God.
31. ' Khula --Compensation -- Wife claiming Khula', was obliged to return articles or compensation in respect thereof, received by her from husband on account of marriage and also to refund. Cash amount received by her.
32. ' Reference has been made to a well-known Ahadith pertaining to the wife of Sabet-bin-Qais-bin- Shams. According to the above Ahadith, Jameela came to Prophet (Peace be upon him) and said that she had no reason to reproach Sabet-bin-Qais-bin-Shams in respect of his morals or his faith but she disliked him. She further stated that having embraced Islam, she did not wish to commit infidelity. Thereupon, the Prophet (Peace be upon him) asked her whether she was prepared to return the garden (Abu Dawood has referred to two gardens and not one garden) given by her husband to her in dower, to which, she replied in the affirmative. Then, the Prophet (Peace be upon him) directed the husband to accept the garden and to give her divorce according to one version and as per another version, given by Bukhari, the Prophet (peace be upon him) had ordered separation upon return of the garden by the wife to her husband. There is also another Ahadith about Jameela's case, which is also in identical circumstances. Kaikaus, J. In his Judgment has referred to the case of a woman who sought divorce from her husband in Hazarat Umar's time. In order to test the seriousness of her demand, Hazarat Umar (r.a.) confined her in a dirty prison, but in spite of that she insisted upon !Chula'. The above instance during the time of Hazarat Umer (r.a.) is indicative of the fact that a woman cannot claim Khula' on whims or fanciful grounds.
33. ' We are inclined to hold that the right of Khula' is not an unconditional right, but this can be .
34. Granted by a Court upon satisfying.
35. ' Para. 2619 From Fatwa-i-kazee, 1977 Edition Volume II.
36. "2619, (1719). So, also if a man marries a woman for a thousand dirhems and has no sexual intercourse with her and his wife does not realise any portion of her dower, so that the husband makes Khoola with the wife for (a definite and certain amount, that is for MaalI-moeyan or) a thousand Dirhems (without saying that the Khoola is in consideration of the dower) Aboo Haneefa, on whom be peace, says, that the wife shall be bound to pay a thousand (to the husband on account of the consideration for the Khoola') and she shall not be entitled to realize anything (from the husband on account of her dower). And Aboo Yusoof and Muhammad, on whom be peace, have said that the wife shall pay five hundred to the husband (in cash as a net result) and the other' five hundred Dirhems (being part of the consideration for the Khoola) shall be set off in the five hundred due to the wife on account of dower."
37. ' A wife claiming Khula is obliged to return the articles or compensation in respect thereof, received by her from her husband on account of the marriage and also to refund the cash amount received by her but there is no legal obligation to pay compensation in addition to the above items.
38. ' A Muslim marriage is dissolved when difference of opinion between spouses may amount to cruelty. Contention that dispute between husband and wife regarding payment of fee to medical attendant on birth of a child can, by no stretch of imagination amount to cruelty Repelled Held; (i)
39. It can be appreciated that if on any affair relating to their matrimonial life husband does not, in good faith, approve of a proposal made by his wife, it cannot be treated as an act of cruelty but if he made it a habit to disagree with her on each and every matter, without any rhyme or reason, and his conduct in this behalf is motivated by a desire to make her life miserable it would certainly amount to cruelty on his part - (ii) As for solitary incident of so-called difference of opinion in present case, even if it is excluded from consideration there was ample evidence on record which spoke of habitual cruelty husband - (iii) Finding of cruelty recorded against petitioner was unexceptionable in view of wife's own testimony coupled with statements of her three witnesses.
40. ' Dissolution of marriage by Family Court Appeal against decree barred Held: (i) Intention is not to re-open and agitate issues based on factual material at appellate forum
(ii) Husband cannot be permitted to achieve the said object indirectly by having recourse to invoking writ jurisdiction. (1987 MLD 2336).
41. ' Dissolution of marriage by Family Court on ground of maltreatment of wife by husband. Immune from interference in writ jurisdiction. 1984 CLC 822.
42. ' Dissolution of marriage on ground of cruelty, Categorical conclusion by Family Court that case of wife stood proved in view of evidence led by her not open to scrutiny in writ jurisdiction. 1984 CLC 822.
43. ' Dissolution on ground of cruelty. Issue relating to husband's cruelty is an issue of fact. Finding by Family Court in favour of wife and against husband on this issue arrived at after believing wife's evidence on this issue. Not open to challenge/interference in writ jurisdiction. Constitution of Pakistan 1973, Article 199. '988 MLD 2169.
44. ' Dissolution of marriage on various grounds including ground of cruelty and in the alternative on ground of Khula. Trial Court found that issue on cruelty was proved but instend of passing decree on such finding it granted decree for dissolution on ground of Khula which was alternative plea taken by Plaintiff in her plaint. Plea of cruelty having been proved. Trial Court was required to have passed decree on such ground instead of decreeing suit on alternative plea of Khula Defendant's contention that finding of Trial Court on issue of cruelty was illegal and wrong, would have no substance for no appeal against such finding had been filed by defendant. Finding of Trial Court on issue of cruelty having attained finally same could not be reopened. Decree on basis of Khula was set aside and decree on basis of cruelty was passed against defendant in circumstances.
45. ' Khula Dissolution of marriage, Ground of Contention that decrees of "Khula" granted to wives without the consent of their husbands were unlawful. The petitioners seeking strength from decrees of religious decrees known as Moulanas or Muftis, Such decrees, however, based upon the books of Fiqah (jurisprudence) of a specific school without any reference from the Holy Qur'an or the Sunnah of the Holy Prophet (p.b.u.h.). Yet it was claimed that view expressed by the Court was contrary to the view expressed by the decrees was un-Islamic. Held that: the petitioner on the basis of difference of opinion between the views of religious decrees and the views expressed by the Courts. Further held that: every decision of S.C. Was binding upon all other. Courts in Pakistan under Article 189 of the Constitution therefore this Bench was Constitutionally bound to follow them in accordance to the spirit of the observation made in a case reported as Abdul Majid and another V.
46. Qazi Abbas Hussan Shah in Case No, 1995 SCMR 29. Therefore, the decision of the SC in the case. Of Mst. Khurshid Bibi V. Baboo Muhammad Amin (PLD 1967 SC 97) on the point of "Khula" has to be followed by this Bench too. As such all the petitions merit dismissal and are accordingly dismissed with no order as to costs.
47. "Khula" Status of males and females is fully evident and there is not a single verse according to which it could be presumed that status of ladies in Islam is less than status of men or vice versa and even if it is presumed that ladies have less status than men it does not prove that ladies become prisoners of husbands after marriage and cannot get themselves separated from their marriage bond unless consented by their husbands.
48. "Khula" from the three famous rucks imdatul Qari" Tafsir. Kabeer and "Khula" and "Fathul Bari" no doubt was left for any sensible person that divorce or separation on any point including "Khula" without the consent of husband can be enforced by Qazi and the claim of religious decrees that it cannot be enforced without the consent of husband or there is Ijma of Jurists on the point of consent appears to be totally without any force.
49. ' Khula the same cannot be granted to the wife just for asking. It cannot be equated with the right of husband to dissolve the marriage by pronouncing talaq. The grant of Khula is dependent upon his satisfaction of the Court that refusal to dissolve the marriage would amount to forcing the parties to live in a hateful union.
50. ' Khula. Where parties do not mutually agree for separation by way of Khula. The Court could allow it in consideration of her giving up right to recover dower which was unpaid and restoration of other benefits if any.
51. Constitutional jurisdiction Interference High Court in constitutional jurisdiction would only interfere when Court or Tribunal had acted without jurisdiction or in violation of relevant statue or law as laid down by superior Courts. Judgment and decree of Family Court having attained finality, mere fact that on re-appraisal of evidence High Court might come to a different conclusion, would not make decision of Trial Court without jurisdiction.
52. ' Khula Wife's right to seek divorce on the principle of Khula' is not contingent on the consent of husband but is dependent upon reaching a conclusion on the part of Judge, that spouses can no longer live within the limits of God. Grounds mentioned in section 2, Dissolution of Muslim Marriages Act, 1939 could be taken by a wife, besides the ground of her aversion against the husband and in case she fails to substantiate such grounds, still her plea of aversion cannot be brushed aside on that score alone Court has to arrive at conclusion whether, as per facts on record, husband and wife can or cannot live together in harmony or in conformity with their obligations and as such within limits of God. Once the answer is in negative, Court can, order separation of spouses by Khula, disagreement of husband to such a course, notwithstanding.
53. ' Dissolution on ground of neglect and ill treatment. Held: In circumstances of case and in view of evidence on record, plaintiff's wife was entitled to dissolution.
54. ' Marriage is not, in Islam, an act so irrevocable that one may be forced to say to the wife, "You are unlucky. True you are not to blame, and you are being subjected to an intolerable life, but we cannot help it." The law gives sufficient powers to the Qazi to dissolve it in case married life is intolerable for the wife. Therefore, although actual habitual cruelty be not established a decree for dissolution can be granted when considering the circumstakce, it would be cruel to the wife to continue the marriage.
55. ' Courts not to be expected to dissolve marriage by acting mechanically on mere choice, discretion, desire or wish of wife. Held further Islamic principal of law enjoying upon Court solemn duty to reasonably scrutinize plausibility and desirability of facts and circumstances brought before it and to arrive at judicious satisfaction to ascertain entitlement of wife, any loose consideration blanket authority allowed to wife to lead to frustrate very purpose and object of regulating right through Courts of law.
56. ' I would also like to refer to various case laws relied by the Petitioner in support of his contention and that is; Abdul Raheem v. Shahida Khan PLD 1984 SC 329.
57. ' Right of Khulah not absolute right by which wife can herself dissolve marriage but is a controlled right.
58. ' I have gone through the citations which in fact support the respondent No,I rather than the petitioner. He has further relied on the case of Amina Bibi v. Mehmood Hussain 1998 CLC 1744.
59. ' ....S.8. Dissolution of marriage on ground of Khula.---Wife seeking dissolution of marriage on basis of Khula must show the reasons on account of which she claimed Khula. Wife was to satisfy the conscience of the Court that genuine case existed for separation on the basis of Chula. In absence of compelling reasons for dissolution, it would not lie in the mouth of a wife to come forward and say that the marriage be dissoloved on basis of Khula' merely because she had chosen to do so.
60. ' ....S.8 Dissolution of marriage on ground of Khula. Wife seeking dissolution of marriage on ground of Khula had levelled allegations against her husband of cruelty, nonpayment of maintenance and immorality in her plaint, but while appearing as witness in the Court she did not corroborate same- --Wife . Neither did utter a single word as to why she had developed hatred against her husband nor spoke of the allegations of immorality or disparity of social status, whereas according to her own statement her husband belonged to a rich family, having good health. Nothing was on record to suggest any fault whatsoever in the person of husband who had made repeated attempts to take wife back to his house. Decree of Khula was possible if either spouses agreed to it or the Court after its satisfaction, ordered dissolution of marriage on basis of Khula. Evidence on record not being of such a nature which suggested dissolution of marriage on basis of Khula' suit of wife her dissolution of marriage on ground of Khula' was rightly dismissed.
61. ' He has also relied on the case of Lal Muhammad v. Gul Bibi PU 1986 Quetta 159 = PLD 1986 Quetta 185: ' Section 5 read with Dissolution of Muslim Marriages Act, 1939 (VIII of 1939), S.2 and Constitution of Pakistan, 1973---Article 199--- Marriage---Dissolution of on basis of Khula'---Evidence for arriving at to satisfaction of or enabling Family Court to exercise jurisdiction for granting relief on point of Khula' not available on record---Held: Dissolution of marriage by Family Judge on ground of Khula' being invalid on face of it, High Court to competently interfere with impugned judgment in exercise of its Constitutional jurisdiction.
62. Khula'--- ' Right to claim dissolution on basis of---Held: Right to claim dissolution of marriage on basis of Khula' being not absolute, no blanket authority to be given to wife for automatically denouncing marital bonds---Held further: Such right (to seek dissolution on ground of Khula') to be reasonably controlled and be dependent upon scrutiny of Court competent to decide matter after properly satisfying itself about existence of reasonable circumstances whereby separation claimed so as to terminate sacrosanct relationship of spouses.
63. Khula'--- ' Right to claim dissolution on basis of Court---Duty of---Wife coming forward and making loose allegation of hatred, disharmony or disliking against husband---Held: Courts not to be expected to dissolve marriage by acting mechanically on mere choice, discretion, desire or wish of wife---Held further: Islamic principles of law enjoining upon Court solemn duty to reasonably scrutinise plausibility and desirability of facts and circumstances brought before it and to arrive at judicious satisfaction to ascertain entitlement of wife, any loose consideration or blanket authority allowed to wife of lead to frustrate very purpose and object of regulating right through Courts of law.
64. ' In this case the writ jurisdiction of the Court was taken into consideration and it was held that writ jurisdiction clearly would not lie in this, whether material evidence was ignored or an admissible evidence considered and also in case of arbitrary exercise of jurisdiction and material legality in conducted of proceeding causing palpable injustice.
65. ' Aalia v. Additional District Judge, Quetta reported in 1986 CLC 27.
66. ' While most of the judgment relied upon by the Counsel do acknowledge the right of Khula. They have been, however maintained that is not an absolute right and the Court has the power to look- up all the facts before granting such Khula. In my humble view that the basic principle of Khula goes the right to woman to seek annulment of marriage, but this right is restricted to the grant of such a right after compensation is paid by her to her husband. This view has also upheld by the cases referred to by the petitioner.
67. ' I am also with a almost humility referring to Hadees of Holy Prophet (peace be upon him) wherein it is said that woman has a right to seek annulment of her marriage purely on the ground that it is difficult for her to live with her husband and/or that she do not like his face.
68. ' As regards compensation the petitioner is entitled to get back all that he had given her and in that respect according to the learned counsel appearing on behalf of the lady the articles are all lying lock-up in the room at the petitioner's father's house and that she has no objection to his taking the same.
69. ' I am also informed that other suits are pending before the Courts below in respect of dower and custody of the children. If that be so then the petitioner shall be well within his right to claim the same in those suits including the compensation to which he is entitled to under the law. The petition in the above observation is dismissed.